ALJDEC decisions subject to certification as final

2010A-1225719-ROC-com · Registrar of Contractors · 2011-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Jeff Sparks. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent had fully complied with the terms of the August 2, 2010 Order of the Registrar and whether the Complainant had unreasonably interfered with the Respondent’s attempts at compliance. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The June 8, 2011 Order setting this matter for a compliance hearing provides, in pertinent part, as follows: Further, the Registrar suspended Respondent’s License in December of 2010. No evidence has been received from Counsel for Respondent indicating that Respondent has made any attempts at compliance in over 9 months. This is not to say that Complainant is without fault as to the delay associated with resolving this matter. It is apparent from a review of the file in this matter that neither party is acting in good faith to facilitate the performance of corrective work. As such, the Registrar maintains that a Compliance Hearing is warranted. IT IS FURTHER ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Flagstaff area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Complainant has unreasonably interfered with Respondent’s attempts at compliance, or whether or not Respondent has failed to comply with the terms of the Registrar’s Orders, absent unreasonable interference on the part of Complainant. If at the Compliance Hearing it is determined that Complainant did not unreasonably deny access to Respondent or its representatives or interfere with attempts at compliance, Respondent’s License shall remain suspended. If it is found that Complainant unreasonably denied access to Respondent or its Representatives or interfered with attempts at compliance, and Respondent submits written proof of compliance with A.R.S. § 32- 1124(B), this matter will be closed and the suspension imposed on December 27, 2010 will be lifted with no further discipline imposed upon Respondent’s License.

Complainant is advised that he must allow access to Respondent or its representatives during the pendency of the Compliance Hearing. As was provided in the Registrar’s August 2, 2010 Order, Respondent must give Complainant written notice of a date and time that it requires access to the Complainant’s residence to comply with the terms of the Corrective Work Order. Such notice must be given to Complainant at least seventy two (72) hours before the selected date and time.

2. There was no dispute that the Respondent has not performed any corrective work on the Complainant’s residence. 3. Credible testimony and evidence established that the Respondent made numerous attempts to gain access to the Complainant’s residence from June 8, 2011 through August, 29, 2011, and that the Complainant repeatedly denied the Respondent reasonable access to the Complainant’s residence. 4. Credible testimony and evidence established that the Respondent did give seventy two (72) hours written notice before the selected date and time to perform the designated corrective work on the Complainant’s residence. 5. Credible testimony and evidence established that the Complainant repeatedly postponed scheduled construction days on various grounds which unduly prolonged the completion of this matter and continued the suspension of the Respondent’s License. 6. Credible testimony and evidence established that there were occasions when Respondent would arrive at the Complainant’s residence on the designated date and time and the Complainant would simply refuse to answer his door thereby interfering with the Respondent’s attempt to comply with the terms of the Registrar’s August 2, 2010 Order. 7. Credible testimony and evidence established that on at least one occasion when the Respondent had given the Complainant the prerequisite seventy two (72) hour written notice, the Respondent arrived at the Complainant’s residence at the designated date and time and the Complainant refused any access to the Respondent. 8. Credible testimony and evidence established that the Complainant unreasonably denied access to the Respondent in this matter. 9. The Complainant’s actions, in repeatedly attempting to delay the performance of the corrective work required pursuant to the Registrar’s Order of August 2, 2010, and in refusing to answer his door, are found to constitute an unreasonable interference with the Respondent’s attempts at compliance in this matter. 10. The Complainant’s unreasonable denial of access is found to be the equivalence of compliance with that portion of the Registrar’s August 2, 2010 Order which requires corrective work on the Complainant’s residence. Accordingly, no further corrective work by the Respondent on the Complainant’s residence is found to be required in order to comply with the terms of the August 2, 2010 Order of the Registrar. 11. The June 8, 2011, Order of the Registrar setting this matter for Compliance Hearing also provides, in pertinent part, as follows: Respondent has yet to provide the Registrar with proof that it has modified its business documents to be fully compliant with A.R.S. § 32-1124(B) as was required in the Registrar’s August 2, 2010 Order. The Registrar will not consider a Request to Lift without Respondent having notified the Registrar that it is in full compliance with the terms of the previously issued Registrar Orders. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent has given written notification acceptable to the Registrar that the Respondent has modified its business documents to be fully compliant with the provisions of A.R.S. § 32-1124 (B) as required in the August 2, 2010 Order of the Registrar.. CONCLUSIONS OF LAW 1. The Respondent bears the burden of demonstrating by a preponderance of the evidence that the Respondent has fully complied with the terms of the Registrar’s Order of August 2, 2010. 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings which establish that the Complainant has unreasonably denied access to the Respondent in this matter. The August 2, 2010 Order of the Registrar specifically provides that any unreasonable denial of access to the Respondent would be treated as compliance by the Respondent. 5. The credible testimony and evidence of record was insufficient and failed to support a finding that the Respondent has provided the Registrar of Contractors with written proof acceptable to the Registrar of Contractors that the Respondent has modified its business documents to be fully compliant with the provisions of A.R.S. § 32-1124 (B). Accordingly, the suspension of the Respondent’s License shall continue until such time as the Respondent fully complies with the terms of the August 2, 2010 Order of the Registrar. RECOMMENDED ORDER In view of the foregoing, it is recommended that suspension of the Respondent’s License continue until the Respondent provides written proof acceptable to the Registrar of Contractors that the Respondent has modified its business documents to be fully compliant with the provisions of A.R.S. § 32-1124 (B). It is further recommended that the suspension of the Respondent’s License shall be lifted upon the provision of written proof acceptable to the Registrar of Contractors that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) and this matter shall then be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, September 12, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826